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TMI Blog2024 (8) TMI 1216X X X X Extracts X X X X X X X X Extracts X X X X ..... t subject to the order of attachment in terms of paragraph 19 of the impugned order dated 17th January, 2020. Appeal disposed off. - JUSTICE PRATHIBA M. SINGH JUSTICE AMIT SHARMA For the Appellant Through: Mr. Abhishek Sharma, Advocate. versus For the Respondents Through: Mr. Amit Sibal, Sr. Advocate with Mr. Anirudh Bakhru, Mr. Ayush Puri and Ms. Archita Mehlawat, Advocates (M: 9811439334). Mr. Arun Bhardwaj, Sr. Advocate with Mr. Anupam S. Sharma, SC, Mr. Prakash Airan, Ms. Harpreet Kalsi, Mr. Abhishek Batra, Mr. Ripudaman Sharma, Mr. Vashisht Rao and Mr. Syamantak Modgill, Advocates for ED. PRATHIBA M. SINGH, J. (ORAL) 1. This hearing has been done through hybrid mode. 2. The present appeal has been filed on behalf of the Appellant-The Deputy Director, Directorate of Enforcement, New Delhi under Section 42 of The Prevention of Money Laundering Act, 2002 (hereinafter, the PMLA Act ) challenging the impugned order dated 17th January, 2020 passed by the PMLA Appellate Tribunal. 3. Vide order dated 17th January, 2020, the Appellate Tribunal had directed the Appellant to restore the possession of certain properties to the Respondent-M/S KRBL Ltd. A provisional attachment order 3rd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suring 16 Bigha, 1 Biswa out of this area purchased is 243/321 part i.e. total area measuring 12 Bigha 3 Biswa at Village Bhasaur Tehsil Dhuri District Sangrur, Punjab. vi) Property bearing Land measuring Khata No. 645/890, Khasra No. 738 Min (0-5), 3327/739 Min (0-4), total measuring 9 Biswa, Khata No. 646/891, Khasra No. 738 Min (6-1), 760 (6-5), 761 (6-5), 3328/739(8-12), 3337/762 (5-10), 3339/773 (5-10), total measuring 38 Bigha 3 Biswa, total of all measuring 38 Bigha 12 Biswa at Village Bhasaur, Tehsl Dhuri, District Sangrur, Punjab. vii) Property bearing Land At Khata No. 645/890, Khasra No. 3327/739/Min (0-4) measuring 4 Biswa at Village Bhasaur, Tehsi Dhuri, District Sangrur, Punjab. 5. The order of attachment dated 3rd July, 2019 was confirmed by the Adjudicating Authority (PMLA) vide order dated 12th December, 2019. The relevant portion of the order dated 12th December, 2019 is extracted hereinunder: 28. On a thorough perusal of the PAO, Complaint, relied upon documents, the investigations conducted by the ED and the statements recorded u/s 50 of the PMLA, and on careful consideration of arguments advanced on behalf of the Complainant and Defendants the undersigned comes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id properties is not passed then it will cause irreparable injury to the economy/ business of the company and also damage to the paddy would be a national loss. 18. Considering the aforesaid facts and circumstance, I find that balance of convenience lies in favour of directing the respondent to restore the possession of the properties mentioned, in the notices dt. 19.12.2019 therefore, the respondent is directed to restore the possession of the properties which were mentioned in the notice dt. 19.12.2019. 19. In respect of all the seven properties listed in both the notices dt. 18.12.2019 19.12.2019, the attachment shall continue. Legal and constructive possession of the ED shall remain over all the properties. The appellants shall not create any third party interest on the aforesaid properties either by way of transfer, sale, mortgage or any other mode of transfer till further orders. 20. The respondent may consider the offer of the appellants to secure the alleged proceeds of crime attributed to the appellants. Accordingly ordered. 7. The Department/Appellant impugns the order dated 17th January, 2020 before this Court. 8. During the pendency of the appeal, an application was pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toring and removing the new goods and the amount of Rs. 11.13 Crores will be deposited on or before 05.11.2020. 7. The aforesaid warehouses shall not be transferred by this applicant, in any manner whatsoever, to anybody and no third party interest shall be created in any manner. 9. Thus, by virtue of the aforementioned order, a sum of Rs. 11.13 crores stands deposited by the Respondent with the Enforcement Directorate, in terms of the said order, without prejudice. 10. The matter has been taken up for hearing today. On behalf of the Appellant/Department, Mr. Sharma, ld. Counsel submits that the appeal itself is coming up for hearing on 14th October, 2024 before the Appellate Tribunal and all the issues relating to even possession can be decided by the Appellate Tribunal itself. 11. It is submitted by ld. Sr. Counsel Mr. Amit Sibal along with Mr. Bakhru, ld. Counsel that the appeal itself is not maintainable as the impugned order passed by the Tribunal is perfectly valid in law. Reliance is placed upon the observations of the Supreme Court in Vijay Madanlal Choudhary and Others vs. Union of India and Others, [(2022) SCC OnLine SC 929] which clearly provides in paragraphs 73 and 74 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-section (4) of section 8. 74. Indisputably, statutory Rules have been framed by the Central Government in exercise of powers under section 73 of the 2002 Act regarding the manner of taking possession of attached or frozen properties confirmed by the adjudicating authority in 2013, and also regarding restoration of confiscated property in 2019. Suffice it to observe that direction under section 8(4) for taking possession of the property in question before a formal order of confiscation is passed merely on the basis of confirmation of provisional attachment order, should be an exception and not a rule. That issue will have to be considered on case-to-case basis. Upon such harmonious construction of the relevant provisions, it is not possible to countenance challenge to the validity of sub-section (4) of section 8 of the 2002 Act. 12. It is further submitted on behalf of the Respondents that interest of the Appellant/Department has already been protected as the attachment of the properties is continuing and there was no compelling hurry for taking possession, that too in violation of the order dated 24th December, 2019 passed by the predecessor Bench of this Court in Writ Petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14. The Court has considered the matter. The order in appeal dated 24th December, 2019 clearly protects the Appellant, insofar as attachment is concerned. No third-party rights and/or interests can be created in respect of all seven properties by the Respondent. 15. Under such circumstances, the direction for restoring the possession of the properties cannot be faulted with on merits. Moreover, even the order dated 24th December, 2019 directed that the Appellant/Department was restrained from taking the possession of the properties. The stand of the Appellant is that notices were issued on 18th December, 2019 and 19th December, 2019 and the time period as prescribed in the PMLA Rules were adhered to. These issues would have to be now resolved in the Appellate Tribunal. 16. The possession of all the seven properties shall now remain with the Respondent subject to the order of attachment in terms of paragraph 19 of the impugned order dated 17th January, 2020. 17. In addition, a sum of Rs. 11.13 crores which is lying deposited with the Appellant/department shall be deposited in a separate interest bearing fixed deposit, details of which shall be filed before the ld. Appellate Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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